CACI No. 2703. Nonpayment of Overtime Compensation - Proof of Overtime Hours Worked

Judicial Council of California Civil Jury Instructions (2020 edition)

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2703.Nonpayment of Overtime Compensation - Proof of Overtime
Hours Worked
State law requires California employers to keep payroll records showing
the hours worked by and wages paid to employees.
If [name of defendant] did not keep accurate records of the hours worked
by [name of plaintiff], then [name of plaintiff] may prove the number of
overtime hours worked by making a reasonable estimate of those hours.
In determining the amount of overtime hours worked, you may consider
[name of plaintiff]’s estimate of the number of overtime hours worked
and any evidence presented by [name of defendant] that [name of
plaintiff]’s estimate is unreasonable.
New September 2003; Revised June 2005, December 2005, November 2019
Directions for Use
This instruction is intended for use when a nonexempt employee plaintiff is unable
to provide evidence of the precise number of hours worked because of the
employer’s failure to keep accurate payroll records. (See Hernandez v. Mendoza
(1988) 199 Cal.App.3d 721, 727-728 [245 Cal.Rptr. 36].)
Sources and Authority
• Right of Action for Unpaid Overtime. Labor Code section 1194(a).
• Employer Duty to Keep Payroll Records. Labor Code section 1174(d).
• “[W]here the employer has failed to keep records required by statute, the
consequences for such failure should fall on the employer, not the employee. In
such a situation, imprecise evidence by the employee can provide a sufficient
basis for damages.” (Furry v. East Bay Publishing, LLC (2018) 30 Cal.App.5th
1072, 1079 [242 Cal.Rptr.3d 144].)
• “[W]here the employer has failed to keep records required by statute, the
consequences for such failure should fall on the employer, not the employee. In
such a situation, imprecise evidence by the employee can provide a sufficient
basis for damages.” (Furry v. East Bay Publishing, LLC (2018) 30 Cal.App.5th
1072, 1079 [242 Cal.Rptr.3d 144].)
• “Although the employee has the burden of proving that he performed work for
which he was not compensated, public policy prohibits making that burden an
impossible hurdle for the employee. . . . ‘In such situation . . . an employee
has carried out his burden if he proves that he has in fact performed work for
which he was improperly compensated and if he produces sufficient evidence to
show the amount and extent of that work as a matter of just and reasonable
inference. The burden then shifts to the employer to come forward with evidence
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of the precise amount of work performed or with evidence to negative the
reasonableness of the inference to be drawn from the employee’s evidence. If the
employer fails to produce such evidence, the court may then award damages to
the employee, even though the result be only approximate.’ ” (Hernandez, supra,
199 Cal.App.3d at p. 727, internal citation omitted.)
• “Once an employee shows that he performed work for which he was not paid,
the fact of damage is certain; the only uncertainty is the amount of damage.
[Citation.] In such a case, it would be a perversion of justice to deny all relief to
the injured person, thereby relieving the wrongdoer from making any restitution
for his wrongful act.” (Furry, supra, 30 Cal.App.5th at p. 1080, original italics.)
• “That [plaintiff] had to draw his time estimates from memory was no basis to
completely deny him relief.” (Furry, supra, 30 Cal.App.5th at p. 1081.)
• “It is the trier of fact’s duty to draw whatever reasonable inferences it can from
the employee’s evidence where the employer cannot provide accurate
information.” (Hernandez, supra, 199 Cal.App.3d at p. 728, internal citation
omitted.)
• “Absent an explicit, mutual wage agreement, a fixed salary does not serve to
compensate an employee for the number of hours worked under statutory
overtime requirements. . . . [¶] Since there was no evidence of a wage
agreement between the parties that appellant’s . . . per week compensation
represented the payment of minimum wage or included remuneration for hours
worked in excess of 40 hours per week, . . . appellant incurred damages of
uncompensated overtime.” (Hernandez, supra, 199 Cal.App.3d at pp. 725-726,
internal citations omitted.)
Secondary Sources
Chin et al., California Practice Guide: Employment Litigation, Ch. 11-D, Payment of
Wages, ¶ 11:456 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 11-F, Payment of
Overtime Compensation, ¶ 11:900 et seq. (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 11-J, Enforcing
California Laws Regulating Employee Compensation, ¶ 11:1478.5 (The Rutter
Group)
1 Wilcox, California Employment Law, Ch. 5, Administrative and Judicial Remedies
Under Wage and Hour Laws, § 5.72[1] (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 250, Employment Law: Wage and
Hour Disputes, § 250.40 (Matthew Bender)
CACI No. 2703 LABOR CODE ACTIONS
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